


THE RELATION 

OP 

THE NATIONAL GOYERNMENT 

TO 

THE REVOLTED CITIZENS 



J^O POWER IN CONGRESS TO EMANCIPATE THEIR SLAVES OR CONFISCATE 
THEIR PROPERTY PROVED. 

THE CONSTITUTION AS IT IS, THE ONLY HOPE OF THE COUNTRY. 



By anna ELLA CARROLL. 



Congress has now under consideration, the question of the power and expediency 
Df abolis) ing slavery, and confiscating the property, real and personal, of all, or a 
[arge cla a of the rebels in arms. A question of more transcendent importance, than 
my that ever before, engaged the attention of the American people. 

With an earnest desire that the country may not be led to the adoption of a mis- 
taken and fatal policy, I propose now to contribute my best eflbrts to a further 
understanding of this vital subject. 

No one doubts the power or the duty of the Government to suppress the rebellion, 
to use the army and navy, and all the military resources of the country to capture 
:he re' .Is, and kill them if they will not submit, and destroy their power to war upon 
js. 1 A, I do not think there is any grant in the Constitution, but rather an 
expre J inhibition upon the power of Congress to abolish slavery or confiscate the 
property of rebels. 

There are two clauses in the Constitution which especially refer to the confiscation 
of pr'oserty. The first defines the crime of treason, and authorizes Congress to pre- 
Bcri.'be xhe punishment ; inhibiting, however, the confiscation of property beyond the 
life 1 neoffendcr. The second is an absolute prohibition to Congress of confiscation 
altog .her. The first defines the crime in these words : " Treason against the 
United States shall consist in levying war against them, or in adhering to their 
anemies, giving them aid and comfort. No person shall be convicted of treason unless 
oa the testimony of two witnesses to the same overt act, or on confession in open 
2ourt." " The Congress shall have power to declare the punishment of treason, but 
Qo attainder of treason shall work corruption of blood, or forfeiture, except during 
the life of the person attained." 

Treason is not an ofiense against society, but an ofiense against its government; 
ind in all ages, a disposition has been evinced on the part of the governing power, 
construe everything as treason which opposed it. And this arises from the nat- 
ural passion of revenge, the desire to punish for opposition toils authority, the rapac^ 

%;>-,.. ^ 

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ity common to all in possession of political power, and the desire to obtain the money 
or estate of the convict. 

Justice Story, in commenting on this clause of the Constitution, says: "The history 
of other countries abundantly proves, that one of ilie strong incentives to prosecute 
offenses as treason, has been the chance of sharing the plunder of the victims. Ra- 
pacity has been thus stimulated to exert itself in the service of the most corrupt 
tyranny; and tyranny has been thus furnished with new opportunities of indalging 
its malignity and revenge, of gratifying the envy of the rich and good, of increasing 
its means to reward favorites, and to secure retainers for the worst deeds.-' 

This feeling is so strong in all sovernments, that Montesqui was so sensible of it, 
that he has not t-crupled to declare, that if the crime of treason be indeterminate, that 
alone is sufficient to make any government degenerate into an arbitrary power. 

The history of England is full of melancholy instruction on this subject. 

Nor have republics been exempt from violence and tyranny of a similar character. 
TYie Federalist has justly remarked, "that new fangled and artificial treason have 
been the great engines by which factions, the natural offspring of free government 
have usually wreaked their alternate malignity on each other." 

It was under the influence of these admonitions, furnished by history and human 
experience, that the convention deemed it necessary to interpose an impassable barrier 
against arbitrary construction, either by courts or by Congress, upon the crime of 
treason. Hence it was that the authors of our Constitution guarded the rights of 
the citizen by defining, specifically, in ichat the act of treason consists, and limiting 
the power of Congress in its punishment by absolutely inhibiting the confiscation of 
the estate of the traitor to the government, leaving it free to pass to his heirs. 

The second clause of the Constitution in reference to confiscation is: "No bill of 
attainder or ex 2^ost facto law shall be passed." 

Now, it is to me a matter of great surprise that any should doubt but that the bills 
before Congress are in direct conflict with this clause. 

These bills assume that certain parties have committed treason, and ought to be 
punished; hut being beyond the jurisdiction of the United States, or in States 
where the civil auiiiority has been expelled; they cannot be brought before the courts 
of the country for trial: therefore, Congress shall adjudge them guilty of treason, 
forfeit their slaves and entire estates, and proceed directly to execute this legislative 
decree by deeds of manuraihsion to the slaves, and seizure and absolute forfeiture 
of all their estates, as a punii^hment for the crime, and as "indemnity for the past 
and security for the future." 

If the object had been to have drawn a bill of attainder directly in co»f r i,vith 
the Constitution, I do not think one could have been made more efficient '7r nore 
operative than some of the bills which have been pressed before Congress. 

A '•'•hill of attainder,^'' as used in the Constitution, is a technical 'crm, and we 
must therefore look to the common law and the concurrent history for the correct 
interpretation of its meaning. 

Woodison in his lectures says: "But. besides a regular enforcement of established 
laws, the annals of most countries record signal exertions of penal justice adapted 
to exigencies unprovided for in the criminal code. 

"Such acts of the supreme power are with us called hills of attainder, which are 
capital sentences, ami bills ol' pains and penalties, which inflict a milder degree of 
punishment. 

"In these instances the legislature assume judicial magistracy, weighing the enor- 



3 ' 

mity of the charge, and the proof adduced ia support of it, and then deciding the 
political necessity and mural fitness of the punishment." 

Justice Story says : " Bills of attainder, as they are technically called, are special 
acts of the legislature as inflict capital punishment upon persons supposed to be 
guilty of high offenses, such as treason and felony, without any conviction in the ordinary 
com-ts of judicial imceedings. If an act inflicts a milder degree of punishment than 
deaih, it is called a bill of pains and penalties. But, in the sense of the Constitution^ 
it seems that bills of attainder include bills of pains and penalties, for the Supreme yVf 
Court have said : "A bill of attainder may effect the life of an individual, or may 
confiscate his property, orboth. In most cases the legislature assumes judicial magistracy, 
pronouncing against the guilt of the party, without any of the common forms and guards 
of trial, and satisfying itself with proof, when such proofs are within its reach, whether 
they were conformable to the rules of evidence or not. In short, in all such cases the 
legislature exercises the highest power of sovereignty, and what may be properly 
deemed an irresponsible despotic discretion, being governed solely by what is deemed 
political necessity or expediency." 

But the advocates of the policy of general confiscation, being unable to controvert 
this authoritative exposition ot the term hill of attainder, assume the extraordinary 
position that the prohibition is not Unding on Congress during a time of rebellion. 

I am unable to comprehend how any one can assume this position ; for nothing is 
more certain than that this prohibition was inserted in the Constitution only to pre- 
vent the exercise of this arbitrary power during a rebellion. 

The authors of our Constitution never apprehended that Congress would assume 
to exetche judicial magistracy, &\ce^\. in time of rebellion. They knew well that 
there never was any motive in time of^eace— and even if there were, that Congress 
would not attempt its exercise. For it is only in times of conflict between the pub- 
lic authority and the people that governments have ever attempted the exercise of 
this extraordinary and arbitrary power. 

Justice Story says, " Bills of this sort have been most usually passed in England 
in times of rebellion, or of gross subserviency to the Crown, or of violent political 
excitement ; periods in which all nations are most liable (as well the free as the 
enslaved) to forget their duties, and to trample under foot the rights and liberties of oth- 
gy-s:^ * * " Such acts have been often rseorted to in foreign govern- 

ments as a common engine of state, and even in England they have been pushed to 
the most extravagant extent in bad times, reaching as well to the absent and the dead 
as to the living. 

» The injustice and iniquity of such acts in general constitute an irresistible ar- 
gument against the existence of the power. In a free government it would be intol- 
erable, and in the hands of a reigning faction it might be, and probably would be, 
abused to the ruin and death of the most virtuous citizen." 

In support of the policy of confiscation, its advocates have searched universal his- 
tory from the time " when Ahab took the vineyard of Naboth, and David gave 
away the goods of one of the confederates of Absalom,'' down to the most arbitrary 
acts of Napoleon. 

They have also cited the various penal enactments of the colonies, during the 
American revolution, in its justification. 

It was, unquestionably, these very acts of confiscation by the colonies which led to 
the clauses in the Constitution prohibiting it in Congress and the States. 

Story, in remarking on these acts of the colonies, says, in a note: "During the 



American revolution this power was used with a most unsparing band, and it has 
been a matter of regret in succeeding limes, however much it may have been ap- 
plauded Jloffrantohelloy 

Never were a people more jealous of iihtrty than our fathers wore at tlip formation 
of the Consiitutiun, and naturally so, too, as uj)on that Constitution depended the fruits 
of the independence whicli they had just achieved at the cost of so much treasure 
and blood. To guarantee this liberiy,they provided in the Constitution for trial by 
jury in criminal cases — the dcjinition and ^Maishment of treason — the prohibition of bills 
of attainder, ^c.,^e. 

But the people feared that these guarantees were not sufficient for the greatest pro- 
tection of their liberties, and hence, the 4th, 5th and 6ih amendments, restricting the 
exercise of these grants of power, in these words: "The right of the people to be 
secure in tiieir person, houses, papers, and effects, against unreasonable searches and 
seizures, shall not he violated, nor shall any person be deprived of lifr, liberty, or prop- 
erty, without due process of laio, nor shall private property be talcen for public use, with- 
out just compensation j the accused shall enjoy the right to a speedy and public trial 
by an impartial jury of the Slate," &c., &c. 

Story, in his comments on the vital importance of these amendments, which he 
characterizes as a bill of rights, says : " It is not always possible to foresee the extent 
ol the actual reach of certain powers, which are given in general terms. They may 
be construed to extend (and perliaps fairly) to certain classes of cases which did not, 
at first, appear to be within them. A bill of riglits, then, operates as a auard upon 
any extravagant or undue extension of such powers. Besides, (as has been justly 
remarked,) a bill of righls is of real efBciency in controlling the excesses of party spirit. 

It serves to guide and enlighten public ojjinion, and to render more quick to detect 
and more resolute to resist attempts to disturb private rights. It requires more than 
ordinary hardihood and audacity of character to trample doion princij>Ies which ovr ances- 
tors consecrated with reverence, which we imbibed in our early education, which recom- 
mend themselves to the judgment of the world by their truth and simplicity, and 
which are constantly placed before the eyes ot the people, accompanied with the im- 
posing force and solemnity of a constitutional sanction. Bills of rights are a part of 
the muniments of freemen, showing their title to protection ; and they become of in- 
creased value, when placed under ihc protection of an indcpende)d judiciary, instituted 
as the appropriate guardian of the public and private rights of the citizens." 

It is sad to witness senators and representatives in the great republic of the United 
Stales, in contempt of the warnings of history, drawing liieir principles and prece- 
dents from the most cruel and revengeful tyrants, and displaying a "hardihood and 
audacity of character in trampling down the principles which our ancestors have 
consecrated with reverence, which we imbibed in our early education, which recom- 
mend themselves to the judgment of the world by their truth and simplicity; and 
which are constantly placed before the eyes of the people, accompanied with the 
imposivy force and solemnity of a const it utioual sanction." 

We are not permitted to doubt, but that these bills originate in the worst and most 
malignant passions of the human heart; and are pressed in ulier contempt, of our con- 
stitutional guarantees. 

Listen to Senator Sumner's words, uttered on the 19ih of the present month, in 
the country's Senate Chamber. 

" With the jirorisixm iu our Constitution, applicable to jury trials in criminal cases, it 
is obviijus that throughout ilie whole ri'lnl country there can be no conviclion under 
such statutes, J'roceL'diiij^s would fail through the disagreement of the jury, while 



the efforts of counsel would make every case an occasion of irritation. For weal or 
woe the gallows is out of the question, it is not a possihiliiy as a punishment for 
this rebellion. Nor looiUd any considerable forfeiture or covfi^ccUion be laiictioned by a 
jury in the rebel country. * * *.*.*. * * 

Surely we uught lo take ail proper steps to avoid such failure of jusiice." * * 

if. i^ * * ******* 

" Strike down the leaders of the rebellion and lift up the slaves. * * * 

"But the tallest poppies must drop. For the conspirators who organized this 
great crime, and let slip the dogs of war, there can he no penalty too great. 

'•They should he not only punished to the extent of our power, but they should be 
siript of all me:ins uf influence, so that, should their lives be spared, ihey may be 
doomed to wear them out jn poverty, if not m exile. To this end their property 
must be taken. * * * •* * *.*.*.* 

But the profierty of the leaders consists largdy of land owned in extensive plantations. 
It IS just that these should he broken up, so that they can never be again the nursery of 
conspiracy or disaffiCtion. 

" Partitioned into small estates they will afford homes to many who are now home- 
less, while their peculiar and overbearinir social inlluence will be destroyed. 

"Poor neighbors, who havebeen so long duped and vii;tims, wWl become independent 
setilers of the soil. Brave soldiers who have left their northern skies to fight the 
battles of their country, resting at last from their victories, and changing their 
bv/ords into ploughsharts, wWl Jill the land with northern industry, and northern prin- 
ciples.^^ 

Here is a distinct proposition to set aside the most sacred guarantees of the Con- 
stitution, to uproot the social system of one-half of the American Union, number- 
ing in the aggregate some twelve millions of souls; and to partition their land to the 
poor and to the slaves, and to the soldiers of the other half of the Union; and to fill 
the South with a foreign industry and foreign principles!! 

I cannot recall to memory any instance surpassing the atrocity of this proposition, 
in all the annals of despotism. 

But the advocates of confiscation by Congress feel it obligatory upon them to find 
some support in the Constitution lor the exercise of this power. 

Senator Howard, in his argument, assumes, that the power " to declare war, to 
make rules concerning captures on land and water, to raise and support armies, to 
provide for calling forth the militia, to suppress insurrection and repel invasion," 
dues by implication give this right, and he claims it as a war-raeasure. 

He says, "if Congress has not the power to confiscate the property of the 
enemy as a punishment, and as an indemnity for the cost of the war, that the 
American people have thrown away, for all time to come, the most efficient means 
of crippling and humbling the enemy." 

This theory of Senator Howard has been adopted, I believe, by all who have 
spoken on this side of the question, whose speeches [ have examined. 

The argument is this: Because Congress has the authority to confiscate the prop- 
erty of a subject of a foreign State in time of war, and vest it in the United States, 
therefore Congress has the authority to confiscate the property of a citizen of the 
United Slates in time (^f civil war and vest it in the government of the United 
Stales. 

This, I apprehend, proceeds from a total misconception of the true nature of the 
Constitution and the principles of international law. 

The right to punish an enemy and hold his property responsible for damages, is 
inherent in all nations, but how this right shall be exercised, depends upon the 
peculiar structure of their government. In ours, the right to punish a. foreign enemy 
and hold his property liable for damages, is vested by the Constitution m Congress? 
as the supreme legislative power of the nation. But the right to punish a domestic 



enemy and hold his property liable for damages, is exclusively vested in the Execu- 
tive and Judiciary Departments. 

"In a state of equality," says Rutherforth, "after an injury is committed, any 
who have suflfered any damage by it are at liberty to make themselves amends at 
their own discretion, and by their own force. They are at liberty to take so much of 
the ofender's goods as is equal in value to what they have lost, and the law of nature will 
give them property in the goods so taken. 

"But in a state of civil society, if both the offender and the sufferers are under the 
protection of the same society their right of obtaining reparation is restrained and le- 
comes suhject to the civil jurisdiction.'''' 

Absolute governments may punish their subjects by the direct exercise of the sov- 
ereign power, but no government can do this which claims to be free. 

For the punishment of crime the Constitution provides citil tribmmls, and has pro- 
vided a civil force to bring the offender before its judgment bar, and if this civil 
force be insufficient, by reason of the strength of the offender, then there is a military 
force provided to bring all offenders, not collectively or by Slates, but indivicUally, before 
the courts of the land, and there they can be deprived of their property, their liberty, or 

their life ! 

Surely no one will contend that the grants of power in the Constitution author- 
izing Congress "to declare war, to grant letters of marque and reprisals," &c., confers 
on Congress the authority to declare war against any State of this Union, or any 
number^of citizens of any State, or to authorize any citizen of this Union to make 
reprisals upon another citizen. 

We are left in no doubt upon this subject, for when the proposition for authorizing 
the exercise of the military force of the General Government against a delinquent State was 
being considered, Mr. Madison opposed it, saying ''that it looked too much like the 
powa- to declare war, and woidd probably he considered by the parly against whom it was 
used as a dissolution of the compact." He moved the postponement of this question, 
which was unanimously agreed to, and was never again brought belbre the Con- 
vention. 

Could Congress use this power, and declare war against any State or any citizen 
of the Union: Could it grant letters of marque and reprisal to war upon the citi- 
zens, one against another : Then, truly, as was forcibly expressed by a Senator, if 
this be our political system, it is not worth much— surely it is not worth the cost of 
a terrible war. 

Before Congress can claim to exercise this power of war over any portion of 
the American people, it must first recognize the rebellion as a i^nccc^s— their revo- 
lution accomplished, and the Union dissolved. In short, must concede to the rebellion 
—what no European power has ventured to do— that they have achieved their inde- 
pendence, and have established a firm and stable government, against which it is no 
longer proper to war with the view of suppressing it. i 

For Congress to take that position, and treat the rebellion as a foreign nation, and 
continue the war from malice or vengeance, is to become allies of the rebellion, and 
ourselves ttaitors, like them, to the Const'ilutioii. 

Fortunately, however, for civil liberty, the Constitution confers ample powers 
upon the Govornmenl for its? own preservation and just defense against all combina- 
tions of domestic foes. 

While the Constitution withholds from Congress all power to declare war against 
any member of the Union, that instrument confers on Congress ample authority to 



provide and maintain a military force, and upon the President ample authority to use 
that force in the defense of the nation, by the suppression of insurrection or rebellion, 
whenever the civil force is not sufficient for that end. 

War may exist between the General Government and a portion of the American 
people, but, under the Constitution, it never did and never can exist, except by armed 
resistance to its authority. Citizens may-"commti treason against the United States, in 
levying war against them,;'' and thus (as in the present instance) involve the country 
in all the horrors of civil war. 

But they do not, therefore, become enemies in the sense of the law of nations, they 
are still citizens of the United States, and owe allegiance to this Government, ar.d are liable 
to punishment for their crimes ; and they cannot escape from their allegiance or their liabil- 
ity for punishment due their crimes, unless they flee from the country of their birth, 
never again to look upon its flag ! 

For, if Congress is true to the Constitution, they never can establish within the 
limits of the United States, a government to protect and shield them. 

If we will but comprehend the reason of the rule in the laws of nations, why one 
nation has the right to hold the persons and property of another responsible, for the 
injuries inflicted by his government, I think it will be conceded that the rule has no 
application to a rebel, in a civil war. 

Writers on general jurisprudence have considered nations as independent moral 
persons living in a state of nature, where there is no common tribunal to settle con- 
troversies with other nations but that of force. 

When an injury is inflicted upon one nation by another, and reparation is with- 
held, there is no way to recover it except by war ; because independent nat'ons, 
from the very nature of things, are not subject to the civil tribunals of any other 
nation. 

A nation is no otherwise responsible than through her people. There is no means 
of recovering reparation except by holding them and their property, public and pri- 
vate, responsible to the oflendcd nation. These constitute not only the wealth of a 
nation, but are the nation itself. 

"As a nation consists of an aggregate of individuals, the property of the nation is 
the property of all its individual nieniln rs, and as a consequence a claim to indemni- 
fication for mjuries susiained by Si foreign State may be sati>fied by a seizure of the 
property of any of the individual members ol' that State." 

"That by the law of nations the whole property of the individual members of a 
State is responsible fur the debts or obligations of the State or of the sovereign." 

"A nation has a complete right by the law of nature to take jjossession of the prop- 
erty of an enemy as far as the purpose of equitable satisfaction, or the necessities of 
JHst warfare require, so as to obtain in the well known phrase, 'indemnity for the 
past, and security for the future.' " 

As Rutherforth states, with more clearness tlian any other writer, the principle of 
this rule in the law of nations, I will cite him fully on this point. 

'• But we acquire no right, corporeal or incorporeal, by the mere act of war, and it 
is a settled principle in the l.iw of nations that without some natural or antecedent 
right tlie mere taking ol a thing by war is no right at all. * * * * 

"In a war which is internally just, as a nation may take the person, so, likewise 
it may seize upon the goods of the enemies, either movable or immovable, as far as 
such seizure is a necessary means to brmg them to do what is right; bul what is 
seized only for this purpose does not become the property of the captors ; the possession is 
just till the purpose for lohich the goods toere taken is ansioered. But as soon as the 
clamis of the injured nation are satisfied, the justice of the possession is at an end. 
******* The surest way of trying whether it is the 
claim of war or the claim of a tacit consent, in concludmg a peace which gives us 

Eroperty in all such goods as are taken in war, is to inquire what sort of right we 
ave to them before peace is concluded. 



" There is no law of nations which forbids our enemies to continue a war when no 
other cause of dispute remains besides our detention of such goods as we have taken 
in the war beyond the equivalent for damage and expenses. As the law of nature 
will allow this to be a just cause for continuing a war, so there is no practice of 
nations and no general opinion of mankind that determines otherwise. But, if any 
law of nations had given us property in such goods, the same law must necessarily 
condemn the adverse nation for continuing a war merely because we would not give 
them up; for tlie design of such a war would be to take from us what the law of 
nations had made our own. 

"This opinion that all goods which are taken in war are not strictly our own by 
any law of nations till peace is concluded; that is, till some consent, either ex- 
press or tacit, has made them our own by the law of nature, seems to be the general 
opinion of mankind in respect to immovable goods, such as fortified towns or pro- 
vinces which have been overrun in war. 

" The captors are looked upon, while the war lasts, to he only in possession of them; 
and though this possession may help them to make a better bargain for themselves 
in a treaty of peace than they could do otherwise, yet the properly which they have 
in things of this sort is deemed to be precarious until a treaty of peace has ascer- 
tained and established it. 

"It is usual in treaties of peace to mention such immovable goods particularly, and 
the captors, if they acquire property in them, acquire it by express consent. We 
may therefore reasonably conclude that the property which the captors have in all 
movable goods taken in war is likewise acquired in the same manner. 

" The only diti'erence is, that immovable goods, which are gtnerally the most im- 
portant, are in the hands of the public, and can readily be returned, whilst movable 
goods are of less consequence, are in private hands, and, because they have either 
been consumed or have not been kept together, cannot be returned so readily. 
For this reason, whilst the property in the former is adjusted by express con sent the 
property in the latter is left to pass from the original owners to the captors by tacit 
consent." 

Hence, we perceive that this rif/ht gives to the captor only the possession and use 
of the property of an alien enemy during war; but the title does not pass, except by 
the consent of the nation to which the property belongs. 

This consent is presumed in favor of movable goods, on account of their perishable 
nature, and the difficulty of identifying them. 

But this rule cannot be applied to rebels, in a civil war, and for obvious reasons. 

Because, if the "rebels in arras" have not, in fact, dismembered the Union and 
formed an independent sovereignty, they are to-day citizens of the United States, and 
their property is a part of its eminent domain ; therefore, no law of war can confer upon 
the United States a higher claim to their property than it now has, by the Constitu- 
tion. 

To transler the property from the citizens to the coffers of the Government would 
not increase the national wealth ; it would add nothing to the national resources to 
take that which is already ours. 

Bu'., concede that the rebels have displaced the national sovereignty, and become 
Ht. foreign nation, then, upon a re-conquest of that territory, our Government would 
enter upon their rights of sovereignty ; take possession of their nation;il domain and 
national revenues; seize and detain their citizens as prisoners, and their property, to 
compel them to do what is right. 

But, if we destroy that rebel power altogether, and retain the territory, our claim 
to indemnity for the past and security for the future is satisfied. 

Vattel says: 

"Till! coii(|uoror, who takes a town or province from his enemy, cannot justly ac- 
quire over it any oilier rights than such as belonged to the sovereign against whom 
(le lias taken up anus. 

" But if tlie entire Stale be conquered ; if the uution be subdued ; * * * if the 



conqueror thinks proper to retain the sovereignty of the conquered State, and has a 
ri"ht to retain it, * * * reason plainly evinces that he acquires no other rights, 
by his conquest, than such as belonged to the sovereign whom iie has dispossessed ; 
and, on the suhnission of the people, he is bound to govern them according to the laws 
oj the State." 

Chancellor Kent says : 

"It 13 a settled principle in the law and usage of nations, that the inhabitants of a 
conquered country chan2:e their allegiance, and their relations to their former sov- 
ereign is dissolved, but ("Aeir 7'etoins to each other, and their riijhts of property, not 
taken from them by orders of the conqueror, remain undisturbed." 

And he cites the Supreme Court as deciding that "the laws, usages, and munici- 
pal regulations, in force at the time of the conquest or cession, remain in force until 
changed by the new sovereign." 

It follows, therefore, that the rebel territory, with the rights of persons and of prop- 
erty not destroyed by the struggle, fall at once under the protection of the Constitu- 
tion and municipal laws. 

We have had in our history but two occasions to exercise this right against foreign 
nations. In our war with Mexico, in which we sent our armies to her capital, for 
the purpose of obtaining indemnity. There, we respected private rir/hf.s, and abstained 
from the seiznre of 2jrivate property ; and being unable otherwise to obtain indemnity, 
we took; by conquest, a portion of her territory, paying her, in money, for the excess 
over and above the amount of our claim for indemnity. Now, had a proposition been 
made in Congress to confi-cate the property of the people of the conquered territory, 
for the acts of the Mexican government, its repugnance to the law of nations would 
have shocked the moral sense, even of the Congress of that day. 

The first act which broke their allegiance to the Mexican government and trans- 
ferred it to the United States, did, in the judgment of all publicists, bar all claim oa 
them for the acts ot their former government. 

But, in one respect, this civil war does resemble a war with a foreign nation. 
The insurgents have subjugated some eleven States of the Union, and have expelled 
all National and State authority, and have enforced acquiescence and qualified alle- 
giance to their arms and revolutionary government. 

This calls for the exercise of new duties, new, I mean, from the fact that there was 
never before any necessity on the part of our Government for their exercis-e. 

But, though they are new, we cannot mistake our way if we will only consider 
the nature of this civil strife, and how far the relations of the citizen is affected 
while the national authority remains displaced by the rebel force. 

On this point Senator Sumner cites from Grotius : " The first and most necessary 
partition of war is this, that war is private, puUic, and mixed. Public war is that 
which is carried on under the authority of hitn who has jurisdiction. Private, that 
which is not so. Mixed, that which is public on one side and private on the other." 

And he says, "In these few words of this great authority, will be found that very 
discrimination which enters into the present discussion. The war in which we are 
now engaged ***** is ' mixed,' that is, pub- 

lic on one side and private on the other. On the side of the United Slates it is 
under the authority of the Government, and is therefore 'public;' on the other side 
it is without the sanction of any recognized government, and is therefore ' private.' 
In other words, the Government of the United States may claim for itself all bellig- 
erant rights, while it may refuse them to the other side." 

This is a false inference from the misapplied principle of Grotius. 



10 

Rutherforth, the recognized expositor of Grolius, in commenting upon this very 
passage in its application to civil war, says : 

"If any one should ask whether these internal wars of a civil society are public or 
private, or mixed, we must certainly answer that in the lanfjuage of the law of na- 
tions they are neither. For since this jaw takes no notice of what passes within a 
civil society, as far as what passes there has no reierence to the rest of mankind, it 
has no occasion to mention wars of this sort, and therefore gives them no name. It 
does not so much as call them wars, and much less does it rank them under the head 
0^ puhlk^ov ■private^ ox mixed. ****:>;** 

Tiie lavv'^ of nations does not call them wars, not because they are not wars, but be- 
cause thev are such acts as do not rome within its view, and as it has therefore given 
no name to. They have certainly the nature of war, for the)' are contentions by 
force. Common usage likewise has given them this name, and calls them civil 
wars. 

"And, if we attend to the nature of the act, we shall find that civil wars may be 
either jniUic, mixed, or private.'' 

"A civil war * * may be called a public one, when the heads of each party 
are respectively considered, by their own people, a<, public jwsons. A rebellion may 
be called a mixed war, when one of the parties is under the conduct of a public per- 
son, and the other consists of private persons : It may be called a private one, when 
there is no subjection on either side." 

According to this very principle of Grotius, a civil strife partakes of the nature of 
a public war, whenever it is carried on against the Government by an organized 
force, acting through regular constituted authorities, regarded and accepted by the 
rebels as public persons. 

It is then a contest between the lawful government on one side, and an unlawful, 
but de facto, government on the other. 

Now to claim that this rebellion is "private"' on their side because their government 
is not a " recognized government," shows a most singular confusion of principles in the 
mind of the Senator. For were their government " recognized," it would the7i cease 
to be a civil war at all, and would become a public war between two foreign na- 
tions. 

From the very nature of things the claim to exercise a right is founded upon a 
corresponding obligation. Our Government cannot claim belligerent rights without 
concediug the existence ofa power (call it what you may) that is under an obliga- 
tion to yidd them ; and an obligation to yield implies a corresponding obligation on 
the otiier side. 

While a rebellion remains within bounds, manageable by the civil force, or by the 
military force acting in aid of the civil authority, there is no claim to exercise or 
duty to yield belligerent rights ; and the relation of no one to his government, in the 
theater of the rebellion, is affected in any way. 

But when a rebellion attains to such proportions as actually displaces all civil 
authority, and subjects a portion of the territory to its dominion, the relations are 
purely belligerent, ana must remain belligerent, until the civil authority is restored. 
For there can be no civil relations without authority to prottct the citizen; our 
Government can hold none whatever with the people of the subjugated States until 
the rebellion is suppressed, and its authority re-established. Tlie fact that these 
rebels possess the military power competent to displace, and hace actually displaced, 
all civil authority, elevates their struggle to the dignity of war. It calls for the exer- 
tion by the Government of its military power, and it must deal with this strife for 
the present only with this military lorce. Martial law may be applied to all the sec- 
tions of country where the rebellion has displaced the civil authority, and every cili- 



11 

zen of the United States may be subjected to martial law; their property may bs 
seized and used by the military power, if the public safety shall require it. 

But private property of the rebels, which may thus be captured, is not, by any law 
of nations, nor cannot be, by any act of Congress, \/ested in the United States, un- 
less upon the recognition of their independence as a nation. For, by the rights of 
postliminium, upon the destruction of the rebel power, every person is restored to his 
former rights, and every thing that has not passed beyond the jurisdiction of the 
United States, which can be found and identified, returns to its former state, under 
the Constitution. 

" The right of postliminium," says Vattel, " is that in virtue of which persons and 
things, taken by the enemy, are restored to their former state, on coming again into 
the power of the nation to which they belonged. 

" The sovereign is bound to protect the persons and property of his subjects, and to 
defend them against the enemy. When, therefore, a subject, or any part of iiis prop- 
erty, has fallen into the enemy's possession, should any fortunate event bring them 
again into the sovereign's power, it is undoubtedly his duty to restore them to their 
former condition, to re-establish the persons in all their rights and obligations, to give 
back the tfTecls to the owners : in a word, to replace every thing on the same footing 
on which it stood previous to the enemy's capture." 

" Among the Romans, indeed, slaves were not treated like other movable property; 
they, by the rights of postUminium, were restored to their masters, even when the 
rest of the booty was detained. The reason of this is evident, for it was always easy 
to recognize a slave and ascertain to whom he belonged." 

The rights oi postliminium are not under the cognizance of the law of nations. 

Manning, in speaking ol the usages of different nations, says: ''Thus it will be 
seen that no general rule obtains x^g?iT(\ing postliminium ; different States have dif- 
ferent regulations on this subject; and, as it is a question which concerns members 
of the same State rather than subjects of different States, its details belong to muni- 
cipal law rather than the law of nations." 

When, therefore, a rebel is brought again, either by force, or by his own volition, 
under the power of the United States, the Government is, by the Constitution, bound 
to re-establish him in all his rights and obligations, and, upon his submission to its 
authority, give back to him his property. 

It is too clear for argument that, during the military occupation of any town, 
district, or State. of the Union, by an invading force of a foreign nation. Congress 
would have no authority to confiscate the property of any American citizen, inhabi- 
tant of that town, district, or State. And should the citizens, no matter from what 
motive, whether from instinct of self-preservation, or from disloyalty, join the invad- 
ing force, and fight in its ranks against their country, they do not thereby become pub- 
lic enemies — they do not forfeit their allegiance to the country— they cannot defeat the 
country's claim to punish them according to the laws of the land. They cannot" plead 
upon the trial for giving aid and comfort to the enemy, that they were traitors, and 
fought willingly against their flag, though they may ^j/eac?, and j^^ead successfully, that 
the temporary inability of the Government to protect them against the superior hostile 
force, constrained their temporary submission. 

True, the military generals of our country cannot distinguish the natiouality of the 
enemy in arms, but will capture or kill all alike, until they surrender to the authority 
of the Government, or flee beyond its frontiers. But the legislative power must dis- 
tinguish a nationality, must recognize the American citizen, must recognize his con- 
stitutional rights to protection, and his liability to punishment for crime. While it 
may hold the nation, to which this foreign force belongs, responsible for indemnity 



12 

and security, and may look to every citizen or subject owing allegiance to this poTver, 
it cannot look to its own citizens, nor confiscate their property, nor hold them as host'yges, 
in order to constrain a foreign government to make compensation ibr wrongs in- 
flicted. 

The same rules which apply to any portion of the citizens of the United States, 
which mav be subjugated by an invading force, applies 7iow to the citizens of the 
Southern States who are subjugated by the rebel force. 

The duty of allegiance and protection are reciprocal; therefore, when a State 
loses the power to protect any portion of its territory and inhabitants, by reason of 
the superior force of a hostile power, the people so reduced necessarily must yield 
obedience to the de /acio government. 

Their property and p rsuns are claimed by the conqueror, but their allegiance is 
not severed from iheir government, unless the conquest is confirmed by the consent 
of the conqueri'd. 

Castine. in tiie State of Maine, was captured and held by the British forces in 
September, 1814, andconliuued in their exclusive possession until the treaty of peace 
in 1815. 

The Supreme Court decided that the sovereignty of the United States was stis- 
pended, and that the inhabitants passed under a temporary allegiance to the British 
Government. 

The Territory of Michigan was surrendered to the British Government by Gen. 
Hull, on the 16[h of August, 1812, and continued in its possession until Sefitember 
30th, 1813. During this lime, the American laws were continued in lurce, and the 
civil officers who remained in the territory w,ere continued in office. Judge With- 
erill, and other officers of the territory, were paid ilieir full salaries during the period 
of the Briti^h occujiation. 

The citizens and civil officers of Michigan vvho remained and submitted to British 
aulhoriiy, were not regarded by our Government as enemies ; but that was before the 
discovery of the theory of political ftlo de se. 

Now, when a revolted people have actually expelled their lawful government, and, 
in its stead, established a de facto one, the condition of the citizens is precisely the 
same as in the case of a lawful government expelled by a foreign Ibrce. Therefore, 
while a government is unable to afford protection to its citizens, it cannot hold tliem 
responsible for any act they may commit while under the pressure of a usurping 
power. 

What, now, are ihv facts in reference to this Soultiern rebellion ? 

Have not the rebels expelled every vestige of authority, both of the States and 
the United States, and established over that territory their revolutionary govern- 
ment? 

Have they not gibbeted, imprisoned in dungeons, or driven into ejile, all who 
would not submit to their despotism ? For more than twelve"'months the Govern- 
ment of the United Slates has been unable to extend to these people the proteclioa 
of its authority; no Jl%g has been seen tiiere, no emblem, of aiUhority on the part of the 
United States to jirotect and shield them. To punish these people for acts committed 
while under the dominion of this hostile force, and while the government of the 
United Stales was unable to protect lliem, would be a flagrant violation of every 
princi[)le of natural ami |ic)liiical law. li would place the authors and executioners 
ol the injustice ujion llie scroll wiiich bears to infamy the name of Jeffreys, the 
judicial murderer under Charles the Second. 



' - 18 

No, no! what the United States may rightfully do is this: The President, upon 
the re-esiablishnient of the civil jurisdiction, may bring to trial and condign punish- 
ment the authors and instigators of this rebellion. If the law against treason is not 
deemed sufficiently just, in view of the enormity of their crime, Congress may pro- 
vide the punishment for all who do not lay down their arms so soon as they can re- 
ceive the protection of their Government. It may exclude them forever fiom all 
offices of honor or emolument ; it mrx^ fine, imprison, or execute them; in short, it may 
declare any jninislment, provided it works no corruption of blood or forfeiture beyond 
the life of the traitor. 

Having established that the responsibilify of the people of the siihjvgated States to the 
General Government depends upon its poicer to extend protection over them, I now pro- 
pose to inquire what are the relations of the General Government to the people where the 
rebels have been subdued, but yet before the civil aidhorily has been re-established'? a 
question, perhaps, of more importance than any which has ever engaged the attention 
of the American people. 

We have effectually overcome the rebellion in some of the States, and in many 
cities and districts of other States, and it is evident that within a short time, if Con- 
gress will but stop its career of violence against the Constitution, we will have 
overcome it in all the States. 

It is not probable that the people will return within a short time to their allegi- 
ance, or that the Government will be able to extend the civil authority over the 
whole of that territory. 

It will be the work of time. 

A large class of these people have become thoroughly alienated from the Govern- 
ment, whether by the efforts of demagogues, or Irom whatever cause. A large 
class still love the Union, and cling to the precious memories of its past history; who 
honestly believe it is dissolved,, and never can be restored. Then there is another class 
who, shocked by the terrible power of the rebellion, have lost all hope and confidence in 
the poicer of republican institutions. 

If Congress will but abstain from all interference, there is no doubt about the abil- 
ity of the President and his patriotic army to suppress the rebellion in every part of 
the territory. But the difficulties are in XQnioxiwg peace to this distracted country after 
the rebel armies are overthrown 

This requires the exercise of the highest and noblest qualities of statesmen. I 
would have Congress make no mistake here. I would have them inaugurate no 
policy oi doubtful constitutionality. Peace can only be restored to the country by ex- 
tending to the people the shield of the Constitution. The union of these States can- 
not be restored under a mutilated Constitution, or under a new or different one. 

Now, until the protection of the Constitution is extended over the subjugated States, 
and the civil authority is re-established, the relations of the people to the Govern- 
ment must necessarily remain purely military. That is, martial law is the only law 
the Government can apply, in the absence of civil authority. 

The right to apply martial law to the citizens of the United States, and subject 
them to military government is conferred by the clause of "the Constitution author- 
izing the suspension of the privilege of the writ of habeas corpus. 

There are several instances in which this power has been exercised in the history 
of this Government, and it was first used under the administration of President Wash- 
ington, during what was called the whisky insurrection. 



14 

It was used by Gen. Wilkinson at the time of Burr's conspiracy, and by Gen. 
Jackson in the war of 1S12. Gen. Scott applied martial law by military govern- 
ment in Mexico during our war with that country. But within the United States 
the public safety never required the application of martial law to whole communi- 
ties of citizens until the present rebellion. 

The estaUishraent of a military government in the States of Tennessee and North 
Carolina indicates the President's policy for the restoration of the subjugated States 
to their rights in th« Union, and is, as I believe, the only policy which can by any 
possibility effect it. 

A military goverument, when established over a territory, holds the whole popu- 
lation, as it were, prisoners of war, subject to the rules of war. Its operations are 
confined to military f|uestions, and subjects all civil relations to its supervision and 
control J though, in fact, it exercises no civil authority, and Congress can confer upon 
it none, as its very existence depends upon the absence of civil authority. 

It may exercise over the people of a district who are subjected to its authority, all 
the rights which military commanders may exercise over their prisoners, according 
to the rules of modern warfare. 

It may provide for their rigorous imprisonment, or it may parole them. 

It may exercise the extreme rights of the code of war over the life, liberty, and 
property of every citizen who revolts against its authority. 

But it has no riglU to take the life or confiscate the property of the people who 
have snhndtted to its authority, any more than a commander has to murder ot plunder 
his prisoners, and Congress can confer upon it none. 

For Congress has no more power to interfere with the conduct of a military 
governor than it has to interfere with the ordinary operations of the army before an 
enemy. 

It is net for Congress to pursue our generals in the field, and say where to plant 
this battery, or what house shall be battered down, what field ploughed up by can- 
non, what cities shall be burned, or what country shall be laid waste. 

The direction of the operations of war belongs not to the legislative department ; 
the Constitution has vested it exclusively in the President as Commander-in-Chief. 

It is only for Congress to raise and support an army sufficient for the suppression 
of the rebellion, it is the President's duty to command and direct it. 

And this military force, directed by the President, may employ every means known 
to civilized warfare. It may subject all persons to martial law, "when the public 
safety may require it," and seize and use all property, within the field of its opera- 
tions, to annoy, to weaken or destroy the rebellion. 

And this without a regard to the ownership of the property, whether friend or foe, 
and leave to the political power to settle with the claimants, according to their re- 
spective rights UNDER LAW. 

This is a fearful power, but withoid which no government can live, and, unfortu- 
nately, by it most free countries have be'en destroyed. 

The authors of our Constitution understood this much better than the men in this 
day. They placed this power exclusively under the control of the President. The 
danger of confiding the military power exclusicely to his hands was fully considered 
by them. Tiiey guarded against the abuse by vesting in Congress the exclusive au- 
thority to raise and support this military force; and they guarded against the abuse 
of Congress by withholding from it the authority to make appropriations for a 
lunger period than two years. 



15 

Senator Howard asks: 

"Have the people of the United States stript tliemselves of all power to control 
the operation of the wars in which they may be involved 7 

"Is nothing- lel't to their representatives but to furnish the men, the material, and 
the money, and are their orders as to the 'mode in which and the purjjoses for which 
these shall be used totally powerless and void ? 

"And does the Constitution subject to the will of the President exclusively the 
use of the military force in all the details of the service ?" 

These very objections were urged by the opponents of the Constitution in the 
State conventions which adopted it. 
Justice Story, in his commentaries upon this power of the President, says: 

" Of all the cases and concerns of Government the direction of war most pecu- 
liarly demands those qualities which distinguish the exercise of power by a single 
hand. Unity of plan, promptitude, activity, and decision are indispensable to suc- 
cess, and these can scarcely exist, ecccept when a single magistrate is entrusted exclusively 
with the poicer. Even the coupling of the authority of an executive council with him 
in the exercise of such power enfeebles the sysitem, divides the responsibility, and 
not unfrequently defeats every energetic measure. 

'■'■ Timidity^ indecision, obstinacy, and prirfe of opinion must mingle in all such coun- 
cils, and infuse a torpor and sluggishness destructive of all military operations^ 

But the Senator takes another and a bolder step. He says : 

" The President is our general and hound to execute our behests, suhject to the will of 
Congress, and liable for disobedience to be reduced at once to the condition of a private 
citizen and incapacitated to hold any office of honor or emclument under the Government.'''' 

The absolute supremacy of Congress is avowed by another Senator, in these 
words: " There is no limit over the power of Congress, it is supreme, and the ordi- 
nary provisions of the Constitution must yield as resolved by Congress." 

I do not charge that there is a conspiracy in Congress to grasp the sword and 
overthrow republican institutions, and establish upon its ruins a legislative despotism. 
But certain it is, that unless this^claim is rebuked by the country, it will end in one. 

For, if Congress can exercise this power during war, the war will never end, except 
"with the destruction of liberty. Grant the power during war, and Congress will con- 
tinue the war for the sake of the power. For the annals of the world record no in- 
stances where the usurpers of power have ever, voluntarily, laid it down. 

When Congress emancipates the slaves and confiscates the estates of the proprie- 
tors, and portions them to the poor and the slaves, in orde- to fill the South with 
" northern industry and norliiern principles," it will continue t*- ^ iar in order to en- 
force its enactments. 

Senator Sumner will not have Congress "fasten upon itself, the restraints of the 
Constitution.'''' He will not have it "repeat the ancient tyranny which compelled its 
victims to fight in chains." 

Unless wiser counsels shall prevail, or unless restrained by the President, Congress, 
" unchained by the Constitution''' will move its armies swiftly over the liberties of the 
country, both South and North. 

Our legislators who would disregard the constitutional guarantees of liberty 
may learn a lesson of Frederick the Great, who desired to remove a wind mill which 
stood before the center window of his favorite palace at Pozdam, but could not 
induce the miller to sell it. The King, irritated, threatened the owner, to force him 
to consent. ^^ 'There is a Supreme Court in Berlin,'" answered the miller. The King 
was silent, and the mill stands to this day, an annoyance to the palace, but one of the 
lest monuments which an absolute monarch ever erected to himself. 



16 

The authors of our Constitution, witnessing the slavery of every people in evi 
age, by the union of all powers, legislative, executive, and judicial in one body, a ; 
with a consummate knowledge nf the philosophy of government, distributed '. 
powers into tiiree departments — legislative, executive, and judicial — defining t 
respective spheres of each with such precision that it is impossible to misund 
stand it. 

Despotism is inevitable wherever power is lodged in a single body, whether 
one or in many ; whether in a single executive or a numerous legislative body. 

That " wf, the people of the United States," do not exert our power directly, ] 
by representative bodies, severally restricted, by a written Constitution to cert; 
specific duties, constitutes the peculiar merit of our form of government, and its s 
cessful working, hitherto, has been the proud boast of Americans, as their coutril 
tion to the science of free government, the first and only one, ever known in 
history of the world. 

Shall it be the last? The last of all the ages, the last of all the lands? And sh 
our Union, rent by factions, after all, pass away — pass like a star that sets to rise 
more, no more, forevf r ? 



^ 



iienry Polkinhorn, printer, Washington. 



jr^V^lSlSOG. 



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